Thursday, April 14, 2016

As the Great Lakes governors prepare to meet next week in Chicago (on Earth Day, no less!) to begin a public discussion of Waukesha's application for a Lake Michigan diversion

you might want to remember that when the other Great Lakes states and Canadian provinces had a crack at reviewing just as a courtesy New Berlin's application for less Lake Michigan water than what Waukesha is asking for some years ago, the other states did not hold back, as I reported in 2007:

Also raising objections were the state of Illinois, and, in an advisory capacity, the Canadian province of Ontario, plus a long list of environmental and conservation organizations that raised significant questions of New Berlin and the DNR about the application's adequacy, accuracy, and completeness.

The State of New York's criticisms were brutal: I summarized them this way in a Capital Times column last year, quoting from the New York document provided through Open Records from the DNR:"New York officials said the application was without key studies, complete data, adequate water supply descriptions, enough system and geological maps and "descriptions of the situation and feasible options."

"New York," I wrote, "opined that there was "no evidence that the applicant is aware of or familiar with the full range of applicable state and national regulations, laws, agreements or treaties," and cited other deficiencies or possible inaccuracies.

"Additionally, New York observed that "the statement of no cumulative impacts is unsupported by any data in the document and does not address potential cumulative impacts to Lake Michigan water levels, shoreline, other users, water-dependent natural resources, etc.'"

Pretty tough stuff for a document the DNR labeled at the time complete and comprehensive.

There is no statutory timeline for acting on this request but there is a clear public health threat right now that the citizens of New Berlin are facing.

We act on laws all the time prior to the rules being in place.

We can place additional restrictions in the permit itself and/or include language in any approval that makes it clear that the permittee will be subject to any additional rules that may be adopted that pertain to the type of permit that we are issuing.

Fundamentally the question here is, has New Berlin provided adequate justification to gain an exemption from the ban on diversions?

We haven't answered that question yet and will need to carefully review all of the public comments before deciding how to proceed.

Whatever we decide to do though, I want to make two key points:

We are confident that we have ample legal authority to make that decision without rules.

We are equally confident that any decision that we make will be specific to the New Berlin application and will have no precedential value for any other request for an exemption from the ban on diversions.

Remember: New Berlin is a straddling community.

It has a problem with radium in its water. They are proposing to return all of the water they use every day back to Lake Michigan.

No consumptive use.

No evaporative loss.

Every drop comes back to the Basin.

Every day.

New Berlin's wastewater treatment system discharges all of its wastewater (both from the Great Lakes and Mississippi River Basin) into Lake Michigan through MMSD every day right now.

Because of the properties in the groundwater in New Berlin, every day they discharge sodium, chlorides, total suspended solids and when they are using the wells, radium, into Lake Michigan.

None of those substances are in the Lake Michigan water that they are proposing to use.

So, the "precedent" that the DNR will set with any decision that we make could only be even loosely applied to:

A straddling community.

With a public health water quality threat.

That already has an existing wastewater system that discharges all of its water back to the Basin.

That can demonstrate that it will return every drop of water back to the Basin in the same day.

With better water quality than the water that the system brings into the Basin now. And actually reduce the drawdown in the aquifer by reducing pumping.

And all of that before we even get to the question of what is the appropriate water conservation plan for a community in this situation.

Hope that helps, Happy to discuss further if you would like before you file your story. I am on the road tomorrow but can give you a call on my cell.

Just drop me an email. "

Waukesha was under the same radium court as New Berlin and was sued again for non compliance and granted another extension until June 30th 2018 - UNLESS they violated that consent agreement which they did in 2010 and were required, by the same court order, to be in full compliance within 3 years.

Wow. Talk about gross negligence by the Wisconsin DNR under Scott Walker and DOJ under JB Van Hollen.

Waukesha, a city of 70,000 is in the exact scenario the the DNR described about New Berlin 7 years ago, "There is no statutory timeline for acting on this request but there is a clear public health threat right now that the citizens of New Berlin are facing." And now Waukesha officials plan to ask for an extension past 2018 if the application is approved, or maybe if a lawsuit is filed against a state voting "no"?

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What water, wetland protection is all about

"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin Supreme Court in its 1960 opinion resolving Hixon v. PSC and buttressing The Public Trust Doctrine, Article IX of the Wisconsin State Constitution.

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James Rowen's Bio

James Rowen, a writer and consultant, has worked for newspapers, and as the senior Mayoral staffer, in Madison and Milwaukee, WI. This blog began on 2/2/ 2007. Posts run also at various news sites, including The Milwaukee Journal Sentinel's "Purple Wisconsin."